ADDRESS OF HARRY N. HAYNES OF GREELEY, COLORADO. THE SUPERINTENDING CONTROL OF THE SUPREME COURT OVER INFERIOR COURTS. It is probably true that in any assemblage of lawyers, if each were asked, without consultation, to enumerate the general powers of the Supreme Court of the state, the great majority would say: The court has power, 1st: To entertain writs of error to and appeals from other courts in such cases as are provided by law; 2d, it has original jurisdiction to issue certain prerogative writs, such as mandamus, certiorari, habeas corpus, quo warranto, as well as the writ of injunction when used as a quasi prerogative writ in cases publici juris; 3d, in this state it has power, and is required, to answer important questions propounded by the Governor or either house of the general assembly on solemn occasions. It has no other jurisdiction except such as is incidental and ancillary to the above. On reading the Constitution, however, it will be noted that in addition to and independent of the authorities and duties just mentioned, the Supreme Court has another very comprehensive power, viz: That of "a general superintending control over all inferior courts." Section 2 of article VI of the Colorado Constitution reads as follows: "The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law." Section 3, immediately following, provides for original jurisdiction in that court of certain named writs, "and other remedial writs," and provides for the duty of answering legislative and executive questions. It is the purpose of this paper to consider the power of superintending control, and to make some suggestions pertaining thereto. On examining the Constitutions of all the states in the Union, we are able to find no other state in whose Supreme Court, by the express terms of the Constitution, are reposed all the classes of powers and duties devolving upon the Supreme Court of Colorado. In three or four of the states, the justices of the highest court are required to answer legislative and gubernatorial questions on solemn occasions, but in no other state is that duty imposed upon the Supreme Court, as a court. In only three other states is the jurisdiction granted to the Supreme Court, divided into three distinct and independent divisions, namely: (1) Appellate jurisdiction; (2) superintending control over inferior courts; and (3) original jurisdiction over certain prerogative writs, to be issued in cases not ancillary to the appellant jurisdiction. These are the states of Missouri, Wisconsin and Michigan. In only eight states other than Colorado, namely, Alabama, Arkansas, Iowa, Michigan, Missouri, North Carolina, South Carolina and Wisconsin, is the power of superintending control over inferior courts mentioned in the Constitution. Of those states exclusive of Missouri, Michigan and Wisconsin, the provision of the Constitution of Arkansas, adopted in 1874, is typical. Section 4 of article VII of that Constitution reads: "The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity, and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus, quo warranto, and other remedial writs, and to hear and determine the same.” It will be observed that there, the power to issue certain writs named, and other remedial writs, is purely in aid of, or ancillary to its appellate and supervisory jurisdiction. The Constitution of Missouri, adopted in 1820, was the pioneer Constitution in which general superintending control was mentioned as a distinct and substantive grant of power. The language of sections 2 and 3, of article V of that Constitution is as follows: Sec. 2. The Supreme Court, except in cases otherwise directed by this Constitution, shall have appellate jurisdiction only, which shall be co-extensive with the state, under the restrictions and limitations in this Constitution provided. Sec. 3. The Supreme Court shall have a general superintending control over all inferior courts of law. It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and other original remedial writs, and to hear and determine the same. The same language was repeated in the Constitution of that state adopted in 1865 and again in 1875. The Constitution of Wisconsin, adopted in 1848, used practically the same language as that of Missouri, except that the writ of injunction was expressly enumerated among the writs within the original jurisdiction of the court, which was not the case in the latter. The Constitution of Michigan, adopted in 1850, on this subject uses the following language: The Supreme Court shall have a general superintending control over all inferior courts, and shall have power to issue writs of error, habeas corpus, mandamus, quo warranto, procedendo, and other original and remedial writs, and to hear and determine the same. In all other cases it shall have appellate jurisdiction only. It will be noted the phrasing of this Constitution indicates that the general superintending control is considered as other than, and is thus distinguished from appellate jurisdiction. While, as we have already noted, only nine states in the Union by their Constitutions expressly confer on the court of last resort superintending control over all the inferior courts as a power distinct from appellate jurisdiction, it is an interesting fact in the history of the common law that this comprehensive power was recognized as belonging to the court of King's Bench. The following excerpt is taken from a brief of Jeremiah Mason: "It is a general principle that the proceedings of an inferior tribunal are to be corrected by the superior, unless the latter is expressly restrained from exercising such a control. This is a |
